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2019 Supreme(All) 2284
IN THE HIGH COURT OF ALLAHABAD
Ramesh Sinha, Ajit Kumar, JJ.
Narendra Giri Mahant of Bade Hanuman Ji Temple - Petitioner
Vs.
Union of India And Others - Respondents
Writ - C No. - 65211 of 2009
Decided On : 19-12-2019
For the Petitioner: Nisheeth Yadav, C.B. Yadav
For the Respondent: A.S.G.I., Pramod Kumar Singh, Prashant Mathur, Satish Kumar Rai, Vinod Kumar Shukla
Headnote:
The petitioner, Mahant of Sri Bare Hanuman Jee Temple, approached the Court challenging the order issued by the Defence Estate Officer, Allahabad Circle, directing him to remove encroachment consisting of RCC foundation and Plinth Beam encroaching the Defence land measuring 2404.50 Sq. ft. within five days of the receipt of the notice/letter/order, failing which, necessary action is to be taken against the Mahant at his own risk and cost. The petitioner claimed that the constructions were permitted vide letter dated 06.03.2004 addressed to the Divisional Commissioner in which the total area for which the construction was permitted stood as 6270 sq. feet as a land belonging to the temple and, therefore, the constructions that have been undertaken under the authority issued by the Defence Officer himself, the petitioner cannot be charged for raising any unauthorized constructions over the defence land. The Court directed the Prayagraj Development Authority to undertake the measurement work through their skilled officers, of the main temple premises where Lord Mahabir (Hanuman) rests and shall prepare a map accordingly. The Court also appointed two learned Advocates as Advocate Commissioners to prepare a separate joint report under their signatures about the conduct of survey in their presence and the manner and method in which it has been carried out. The Court held that the permission granted under the letter dated 06th March, 2004 can be construed as only one time measurement and for a limited purpose or permission in perpetuity. The Court further held that the constructions in dispute fall within the area of temple premises and any construction over a private land so registered/recorded in the GLR notified under the Cantonment Board, can be raised without prior sanction of the Cantonment Board or any competent authority in that behalf. The Court directed the petitioner to remove all the constructions permanent and temporary beyond the area 4335 Sq.ft.. shown in the map prepared by the Prayagraj Development Authority within a period of three months from the date of the order.
Fact of the Case:
The petitioner, Mahant of Sri Bare Hanuman Jee Temple, approached the Court challenging the order issued by the Defence Estate Officer, Allahabad Circle, directing him to remove encroachment consisting of RCC foundation and Plinth Beam encroaching the Defence land measuring 2404.50 Sq. ft. within five days of the receipt of the notice/letter/order, failing which, necessary action is to be taken against the Mahant at his own risk and cost. The petitioner claimed that the constructions were permitted vide letter dated 06.03.2004 addressed to the Divisional Commissioner in which the total area for which the construction was permitted stood as 6270 sq. feet as a land belonging to the temple and, therefore, the constructions that have been undertaken under the authority issued by the Defence Officer himself, the petitioner cannot be charged for raising any unauthorized constructions over the defence land.
Finding of the Court:
The Court held that the permission granted under the letter dated 06th March, 2004 can be construed as only one time measurement and for a limited purpose or permission in perpetuity. The Court further held that the constructions in dispute fall within the area of temple premises and any construction over a private land so registered/recorded in the GLR notified under the Cantonment Board, can be raised without prior sanction of the Cantonment Board or any competent authority in that behalf.
Issues: 1. Whether the permission granted under the letter dated 06h March, 2004 can be said to be permission to raise new construction around temple area and was to operate in perpetuity? 2. (i) What exactly is the area of temple premises to be called as such and the exact area of main temple and; (ii) whether the constructions in dispute fall within the area of temple premises ? 3. Any construction over a private land so registered/recorded in the GLR notified under the Cantonment Board, can be raised without prior sanction of the Cantonment Board or any competent authority in that behalf.
Ratio Decidendi: The Court held that the permission granted under the letter dated 06th March, 2004 can be construed as only one time measurement and for a limited purpose or permission in perpetuity. The Court further held that the constructions in dispute fall within the area of temple premises and any construction over a private land so registered/recorded in the GLR notified under the Cantonment Board, can be raised without prior sanction of the Cantonment Board or any competent authority in that behalf.
Final Decision: The Court directed the petitioner to remove all the constructions permanent and temporary beyond the area 4335 Sq.ft.. shown in the map prepared by the Prayagraj Development Authority within a period of three months from the date of the order.
JUDGMENT :
1. Heard Sri C.B.Yadav, learned Senior Advocate assisted by Sri Nisheeth Yadav, learned counsel for the petitioner, Sri Parashant Mathur, learned counsel appearing for respondent no. 4, Sri S.K.Rai, learned counsel for respondent no. 3 and Sri P.K.Singh, learned counsel for respondent 1,2,5 and 6. and Sri Ajay Singh, learned Advocate who has placed before us the report and the survey map prepared by Prayagraj Development Authority today in a sealed cover. We have opened the sealed cover in Court and have perused. Survey map and report of measurement are taken on record. Sri Vikas Budhwar learned Advocate Commissioner who has submitted joint report with Mr. Kunal Shah, learned Advocate as directed by us, is also present.
2. The petitioner Narendra Giri before this Court claims to be Mahant of Sri Bare Hanuman Jee Temple just below the bandh and in close proximity of OD Fort, Allahabad, has approached this Court by means of this writ petition under Article 226 of the Constitution against the order dated 19th November, 2009 issued by the Defence Estate Officer Allahabad Circle wherein direction has been issued to Mahant Narendra Giri to remove encroachment consisting of RCC foundation and Plinth Beam encroaching the Defence land measuring 2404.50 Sq. ft. within five days of the receipt of the notice/letter/order , failing which, necessary action is to be taken against the Mahant at his own risk and cost.
3. A detailed counter affidavit, supplementary counter affidavit have been filed by respondent no. 3, namely, Deference Estate Officer, Allahabad Circle and Chief Executive Officer, Allahabad respectively and rejoinder affidavit and supplementary rejoinder affidavit have also come to be filed by the petitioner and thus, pleadings have been exchanged in the matter.
4. Since, encroachment was seriously disputed by the Mahant, the rival parties have come up with their own measurement report of the alleged encroachment and the area in which temple situates, this Court passed a detailed order on 12.10.2019 directing for survey and measurement exercise and submission of report thereof in the presence of the independent Advocates Commissioners, by the Prayagraj Development Authority with the consent of the parties. The order dated 10.12.2019 passed by us is reproduced hereunder:
“1. Supplementary rejoinder affidavit has been filed today by Sri Nisheeth Yadav, learned counsel for the petitioners, which is taken on record.
2. Heard Sri C. B. Yadav, learned Senior Advocate assisted by Sri Nisheeth Yadav, learned counsel for the petitioner, Sri Prashant Mathur, learned counsel for the respondent No.4 and Sri Pramod Kumar Singh, learned counsel appearing for respondent Nos.5 and 6.
3. In this petition, the petitioners are aggrieved against the action undertaken by the respondent Nos.3 and 4 by putting them to notice to remove certain encroachments/constructions around the main temple of Lord Mahabir (Hanuman) in the close vicinity of the fort, on the ground that these constructions are unauthorized one and have been carried out in an area which belongs to the defence force.
4. Assailing the notice, the argument advanced by learned counsel for the petitioner is that it is the respondents themselves who had sanctioned for construction vide letter dated 06.03.2004 addressed to the Divisional Commissioner in which the total area for which the construction was permitted stood as 6270 sq. feet as a land belonging to the temple and, therefore, the constructions that have been undertaken under the authority issued by the Defence Officer himself, the petitioner cannot be charged for raising any unauthorized constructions over the defence land.
5. A counter affidavit has been filed in the matter in which the respondents have admitted vide Annexure CA-1 issued by the Chief Executive Officer in which qua Survey No.94/71 the total area admeasuring
